We write seeking information about a memorandum issued on July 10, 2007, by the Justice Department's Office of Legal Counsel (OLC), concluding that former White House Counsel Harriet Miers should be absolutely immunized from responding to a subpoena to appear and testify before Congress. The White House and Ms. Miers are relying on this opinion as the basis for Ms. Miers' refusal to appear yesterday before the House Judiciary Committee.

There is a serious question about whether this OLC opinion was properly issued. Under applicable law and regulations, the Attorney General has delegated to the Assistant Attorney General of OLC the authority to render opinions and legal advice to the various agencies of the government. The Assistant Attorney General may delegate this authority, but he or she must supervise the delegated work. When there is no Assistant Attorney General, confirmed or acting, the Attorney General must supervise the delegated work. Since you have recused yourself from matters relating to the U.S. Attorney's scandal, it is unclear under whose supervision the July 10th OLC opinion was issued.

The letter goes on to describe why Bradbury cannot be the acting AAG, explaining what I reported yesterday about the Vacancies Act violation, and therefore had no authority to write the letter.

This move is so priceless on a number of levels. The letter goes on to place this against the background of Bush's attempts to game the appointments process with the original PATRIOT provision. The suggestion is that this is another attempt to do so (one that parallels his apparent attempt to stretch out the tenure of the USAs currently serving under the PATRIOT provision). It also emphasizes that Bradbury was never approved as AAG (by a Republican Senate) because of his implication in the NSA scandal. And then reminds Gonzales that the problem is that Bush refused to allow OPR to investigate whether the OLC acted improperly under Bradbury. This letter has it all: USA Purge, NSA Scandal, and abuse of Executive Privilege, all rolled up into one.

And if the letter was written without the proper authority? Well, then, Harriet is in contempt by anyone's measure, not just John Conyers'.

Comments

I have to disagree with you on the last point. Harriet Miers isn't the one in trouble here. Gonzales is. He appears to have delegated an authority that he was required to supervise, but he didn't actually supervise it. Miers can reasonably argue that she believed the memo was properly issued. Gonzo, on the other hand, can't say that he followed the law here. Either he supervised the memo, in which case he was involved in an issue that he'd already recused himself on, or he didn't supervise it, in which case he illegally delegated his authority. Either way, Gonzo is the one on the hook, not Miers.

POTENTIAL IRONY BONUS POINT: The whole story will move up one whole notch on the irony scale if Gonzo "can't recall" whether or not he supervised the memo.

This story needs to be repeated ad nauseum. Very true, this brings together a number of elements of Bush's malfeasance: USA Purge, NSA Scandal, and abuse of Executive Privilege. I agree that this puts Gonzales in a little more hot water (though that hasn't gotten him burned yet), Miers is also a lawyer, was White House Counsel, so she should be familiar enough with the law to know that her refusal to testify was bogus.

EW, So many new developments so little progress. I've been aware of the drip, drip, drip of corruption scandals for years now. When will the flood gates burst open? I'm not impatient, I'm just unconvinced we can get it turned around.

I don't know how much weight it carries in determining the validity (or lack thereof) of the opinion rendered in the memo that Bradbury shouldn't have been delegated the task of writing it. It can certainly be reissued under someone else's name with no changes.

The issue that comes to my mind with the fact that Bradbury shouldn't be serving is what recourse does the Congress have when they discover that people are serving in these positions who shouldn't be? And what implications might that question have for, say, the continuance in office of Jeffrey Taylor, when the time comes to sit on contempt of Congress referrals?

If Gonzo tries to claim that HE supervised, wanna bet we will be treated to a "Paper Chase" quality Socratic method questionng of Gonzo on the particulars of the case law?

Oh, and sorry to disagree with you Frank, but Harriet Meyers in potentially in disbarment land.

As an officer of the court she CANNOT (at least in most state, maybe Texas is different) flought duly issued legal process such as a subpeona.

She didn't move to quash, she didn't show up like Sara Talyor (acting on the excellent legal advice of the obvioulsy not crazy Neil Eggelston, a lawyer who enjoyed a superb reputation when he was an AUSA in SDNY)did, the only legal defense she would have in a disbarrment proceeding would be that she was relying on this memo from OLC.

In some states that might not be enough b/c she would have her own duty to read the research and conclude in her own mind that the memeo was correct.

Kagro,
When you say it could be re-issued in someone else's name, how would that change things?

The AG had to "supervise" in order to delegate. If he did not supervise it when it was first drafted, ie, did not read any of the research or approve any of the conclusions; how could getting some forced plagerist to put their name on it cure that?

The issue is a little different with Taylor than it is with Bradbury. There is a legal means to replace Taylor--a district court judge does it.

And oh wouldn't Reggie love an opportunity to tweak BushCo at this point? Not sure it'd be Reggie, but still...

Also, I think AGAG is between a rock and a hard place. I don't think he can delegate his supervision here. And he certainly hasn't done so. So he can't delegate it to Clement, which is where it would properly go (since Clement, in spite of the fact that he is already defending the WH on this stuff, is "in charge" of the investigation since Gonzales recused himself). But the other thing is--CLement is getting cold feet on some of this stuff. This opinion may well have come from Bradbury because he was willing to write it. And I'm not sure Clement is willing to do so.

I just don't see the questions of supervision as a fatal defect in the memo. The substance of the memo is defective enough as it is.

What's of interest in the supervision question is why DOJ isn't abiding by applicable statutes and regulations when rendering OLC opinions. So what do we think the SJC does if DOJ says, "Oops, that's right. Our bad. Here's the same memo, but with a full explanation of the chain of command that went into it."

With so many other clear and inexplicable violations on their plate, I have a hard time believing the SJC won't consider this defect cured if DOJ sends someone to beg forgiveness, but then hand over the same opinion.

I'm not sure I agree, Kagro, for several reasons. One, because by raising the issue of BushCo abusing appointments, then it places appointments back front and center as a leg issue--thereby refuting Clement's whole argument for executive privilege. I also think DOJ CAN'T just reissue. Either Gonzales has to unrecuse (in which case you've got your fifth reason why HJC must take over this investigation--which is where I think they're going). Or Clement has to do it, if it's legal, and I rather suspect he won't do so (could be wrong, though).

The other effect this has is to back up all the DOJ issues--they can't give Harriet immunity until they get a new OLC head, they can't get that until they start cooperating, they can't get either until they turn over the NSA stuff. Sure it might not work. BUt it's certainly an interesting chess move.

Kagro X--They're running out of people who can legally render an opinion. The DOJ is falling apart. I'm not sure they've got many people left who are both eligible to write such an opinion and willing to do so. They're trying to run out the clock here, but it doesn't look like they're going to make it. Eventually, Bush is going to have to nominate someone who needs to be confirmed by the Senate. Then the fun is REALLY going to begin.

It certainly has the effect of refocusing the issue of abuse of the appointments power. But I don't think it advances the ball all that much. You can never tell, but I would think that dam is either going to break or not based on the million other pieces of the puzzle. But if it helps, I'll take it.

Still, aren't the immunity claims are both makable testable whether OLC issues an opinion or not? It's nice to be able to carry an OLC opinion with you into court, but I don't think it's necessary to have beforehand. Especially if it's a stupid and specious opinion to begin with.

Leahy has sent a brief, yet verbose, set of interrogatories to Gonzales, allowing a few days for the attorney general to reply prior to the hearing scheduled. One interrog captures some of the complaints Leahy et al air regarding of the OLC advice on Miers, citing the appointment statute, there.

Burnham Wood may not be on its way to Dunsinaine quite yet, but I hope this signifies that tree cutting has commenced.

If I correctly understand this post, the OLC memorandum is the legal equivilent of letting someone replace my car tires with four donuts, and allow them to attach the donuts to my vehicle using the legal equivilents of paper clips and spittle.
Good to know.

Please don't let these fools prosecute actual terrorists; they're over their heads even trying to write a memorandum, for Chrissake.

On one level, funnier than hell. On another... utterly terrifying.
Leahy and the Dems need to prevail, and the sooner the better (simply for the national security implications alone).

Had an interesting suggestion at the bar last night- if we sell Texas to the Mexicans, does that instantly de-president Bush, becuase his official residence will no longer be part of the United States?

We were three or four pints in, so of course it sounded like a great idea at the time.

Oops. The DOJ and WH appear to have, um, shat in their own nest on this one. I hope the staffer who pointed this out -- if it was a staffer, since I don't think a blogger caught it -- gets a Christmas bonus.

Emptywheel's point, I think, is that this little vignette illustrates how compromised the upper echelons of DOJ have become thanks to the combination of resignations and recusals, delegation powers and dodgy appointments, and the White House's role therein. They've painted themselves in a corner to the point of having white-tipped shoes.

Tekel, that is an interesting thought... But, could we draw the line at about 20 miles north of Waco? I live in north Texas, and aside from the fact that some of his supporters live in this area, it is not a bad place to live ;-) They would not have anyone to support then, so maybe it would restore them to sanity... Nice thought, anyway ;-)

tekel--I had a similarly bizarre line of thinking on Senator Lieberman--If the state exercises its right of eminent domain and declares that all of his property in Connecticut should be seized by the state, can they then declare that he's no longer a resident of Connecticut and therefore ineligible to be their Senator?

Be careful, Marcy, if these pols start listening to you, you might become inexorably mixed up in the weenie crowd...

NOT!!!

But I would bet, especially since the Libby trial, some of your cues have been picked-up by the powers that be, and this is not the first time.

And since logic always trumps chaos (don't argue with me about that one) they obviously find your perspective clarifying, to put it simply.

True, you aren't the easiest read on the blogs, Josh Marshall and Scarecrow own that distinction for me. But that just goes with the legal territory you cover so exhaustively.

What I have discerned in my short time here, is that I need to read ALL your words, CAREFULLY, because in so many cases, the thread that ties it all together is very transcendant, and without the full picture that your whole body of work presents, it leaves many superficial skim-bloggers at a loss for intelligent dialogue.

Well, there is a lot of meat packed in this nut here isn't there? I view this somewhere in the middle of what appear to be two camps forming here. I think Ew is correct that the status of Bradbury is notable and has some implications, but in the bigger picture on this issue, Kagro X is correct that this may be a flaw or defect, but not a fatal one. The real issue is the legitimacy of the legal reasoning contained in the Bradbury memo/opinion, not the actual document itself. Furthermore, I don't think Miers gets to rely on the memo anyway as, at best, it is an advisory opinion not to her, but to her former employer. The general law of writs, which include such concepts as subpoenas, search warrants, arrest warrants, mandamus, etc. is that if the document is valid on it's face, it is valid. Simply put, there is literally a document that is the subpoena for Harriet Miers. If it is a lawful document, i.e. was it indeed issued by the Congressional body it references (it was), does it properly identify the person the body wishes to attach (yes, Harriet Miers), does the body have the lawful power and jurisdiction to issue such a writ of attachment (yes, Congress has this subpoena power), and does the document give adequate notice and reasonable opportunity to comply (yes). That is about it. If thgose general type of considerations are met within the "four corners" of the subpoena itself, it is lawful and must be responded to, and failure to do so is contemptible. Now, as LHP has indicated, Harriet could have responded by moving to quash or otherwise formally challenge the propriety of the subpoena, or she could have appeared and invoked executive privilege, 5th Amendment or whatever. But simply not appearing, blithely blowing it off, is NOT a valid option. LHP is correct (and I discussed this here with somebody last week) that for a licensed attorney, this is a big no no for Miers. Now Texass may not do much to her, as she has friends on the Supreme Court there, as does Gonzales and Bush, but there can be little doubt but that Miers has violated professional ethical obligations and should be subject to discipline. To summarize, I think the chain of command question is useful to show how screwed up and criminally incestuous the White House and DOJ are on these matters, but it is not necessarily legally determinative on anything.

tekel -- I love the idea, but we would have to pay Mexico to take W along with Texas, plus we would have to chip in Wyoming and a bit more for Cheney ;)

I agree that DoJ is in complete disarray at this point, but I'm curious whether you get the sense that the aforementioned Senators are finally ready to push into the impeachment end-game. The reason I ask, is with Feingold one of the 4 Senators, in light of his diary over at DailyKos the other day where he states that he is not in favor of impeachment, I suspect this is just another drop in the "lets embarrass Republicans so we win the next election" bucket.

LHP, I wish I shared your enthusiasm, but we have been here before, observing conduct that is clearly illegal, yet the Congressmen with the authority to act fail to do so. They talk a good game, but until someone says the word impeachment out loud and in public, I'm forced to conlude that this is all for show.

I just tried to write the most honorable senator Cornyn to complain about the continued mismanagement in the DoJ. Maybe I have written him too many letters -- the server does not want to take my letter or something... I just have to wonder when some of these dorks are going to wake up and start supporting the country instead of the party and Dubya.

mighty mouse - Yes, that appears to be the case, but I cannot find a copy of the decision/order yet.

phred - Yes, you can appeal a decisions against a plaintiff on a motion to dismiss. Quite frankly, the odds are not good. As I have discussed here some time ago, I don't think the Wilson's complaint was well set up at all, for several reasons. I pretty much anticipated this ruling, and I that on the record transmitted for appeal, it will stand up. Due to the broad scope of "sovereign immunity" a suit like this is very difficult to get to trial, and the Wilson's complaint was not tactically set up to maximize the chances of making it past a motion to dismiss.

Just a great letter all around. Like you said, it's got everything: fired USAs, warrantless wiretapping, pathetic Executive Privilege. There's a heaping dose of "what the hell are you doing, moron" snark, and the signers are also kind of an A-team of guys who Cheney, Bush, and Rove really hate. AGAG sends over this letter--waiting to be told what to do--and the three amigos look at each other and just say "how did we let these guys get in power again?"

Thanks bmaz -- I missed your prior comments on the civil suit so I didn't realize it was on a poor footing. I'll just add this as another reason on my growing list for impeachment, since between this dismissal and Bush's obstruction of justice the route through the courts to accountability appears to be at an end.

I wouldn't want to deal with Gonzo's in-box. It must be discouraging, Congress after his ass, bad press, and Dubya won't acknowledge you at a sporting event. At what point does he just say *uck it & resign the job of BFF firewall?

To summarize, I think the chain of command question is useful to show how screwed up and criminally incestuous the White House and DOJ are on these matters, but it is not necessarily legally determinative on anything.

We may end up with the sublime Kafkaesque: that is, White House officials citing the Bradbury memo as the basis of not fessing up on its origins and generation.

Maybe someone has already suggested this, but what about a Qui Tam action against people drawing pay for jobs they can't legally hold? You don't have to be a gov't prosecutor to bring one, just a gutsy lawyer.

Mimikatz - Nothing like asking your legal friends to beat their head on a brick wall, eh? This is an extremely interesting thought; but I sure as hell wouldn't want to be the lawyer trying to slog through this minefield.

Two separate, but also not severable is some aspects, issues - the ability of someone to refuse to even show up in response to a Congressional hearing based solely on their reliance on an OLC memoranda; and the ability of OLC to act through Bradbury in the circumstances to issue the memo that was used for reliance. I think it's not so much is EW or Kagro right, as that they are focusing on different elements where each of them is right, but not to the exclusion of the other.

To deal with the second part first, Bradbury's time is up. So he can't authorize the issuance of this opinion (or others). The AG can still authorize the issuance of opinions by OLC (since it is the AG's delegee) but GONZALES as AG cannot authorize the issuance of opinions by OLC on this topic, bc Gonzales is recused. My gut is that he will try to come back arguing that he is not recused from the "general topic" of response by former administration employees to current Congressional subpoenas and that he can supervise on that general issue. THe acting AG for the overall matter, however, is Clement and it's looking more and more like the Committee may want to put Clement in the cross hairs under some theory that - just as they were all avuncular with McNulty, Clement is a "good boy" too. As much as that makes me laugh, I should feel better, but I don't. So even if Gonzales tries to preserve a right to be involved in the response, it's mostly going to come down to Clement. [They should already be gearing up to make Clement answer how executive privilege could apply to conversationst that the President has said publically, to the American people, and through his spokespersons, never took place (Bush did start off with more a Sgt Schulze than a CIC defense)] So, under this issue, OLC cannot just get anyone other than Bradbury to sign off - the person on the hook for what is issued is and will have to be Clement.

As to the first question, the issue of failure to respond to a Congressional subpoena in any manner, based solely on a reliance on an OLC opinion of questionable content/valdiity - the answer may be relatively easy but the remedy may be non-existant within the confines of the Dept of JustBush. I don't think anyone would buy that you can just refuse to show up and the opinion to the contrary is pretty specious. I'm also thinking there are some very unique privity issues for Miers to claim the ability to rely on such an opinion in any event. However, the OLC opinion is really just window dressing on the real issue - which is, when the Dept of Justice has become not only the President's private law firm, but a private firm that is exempt itself (by viture of control of all federal prosecution) from being required to comply with law, what do you do?

How do you rely on a State Bar to disbar someone over something Congress is unwilling to impeach them over and a matter on which no federal prosecutor will bring as a criminal action so that you have a clear criminal conviction issue?

Leahy is setting it up for the case on impeachment for Gonzales and/or Clement to be stronger, but to what avail if Democrats will not take action on impeachment? I guess the only other option is to wait and hope that the next President would actually have an AG who would go after the whole cabal for criminal violations where the statute hasn't run (and I think for obstruction it can't even start to run while the obstruction efforts are ongoing) - but not one candidate ever even mentions that possiblity.

So it's just a sad situation. All of the law has left the Executive branch and the Dep of Justice and we really aren't much different from a third worldorder. In the biblical sense, at DOJ you've passed the point of looking for even one good man and you're at the point of wondering just how many pounds of salt are in that pillar.

It has seemed to me Clement is circumspect. Reading his slogging thru the grilling at the Hamdan argument at Scotus, even recognizing his case was weak in multiple areas, he kept some sense of equanimity; which temperament likely is part of why he is at his current post. He seems to select arguments carefully, as well. I, too, still hear Leahy continuing the no confidence discussion which congress voted but needed supermajority to pass regarding Gonzales.

There is a pattern of dismissiveness from this executive, though. Rep. Rahall's committee holding a hearing on the 70,000 salmon demise in a Cheney-Rove Klamath gambit to garner agrarian votes in 2002 evidently will be another Cheney no-show; though Ralston is involved, very forgetfully, according to transcripts of a deposition available on the internet; The Gavel site has more. A difficult to find AP update the day following that Rahall post, cited Cheney's spokeswoman Megan McGinn, "...do not exect the VP to testify before the committee..."

Lastly, there was an effort by Department of Interior to balk at the CA law to clear the air of greenhouse gases; Waxman's site describes the obstacles DoI tossed in the way, and provides links to two documents; wierdly, DoI internal communications in one of the documents linked is replete with Redacted email server coordinates; looks like maybe DoI folks like the Republican off-site server modus operandi, as well. Waxman's site: there.
And apologies to ew for missing the first link to the Leahy leter 1 to Gonzales discussed in yesterday's blog. JL

I think in the end it will come down to impeaching Gonzales. He's an easier fish to catch than his higher-ups, and even if it takes time from 'more pressing matters', what ever they may be, I'm sure that the Senate can figure a way how to fit it in. The fact that it raises questions about the rule of law so directly makes him an easier case to prosecute than the other two guys who made him do it. If this is the thing that finally breaks the dam, then so be it.